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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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Horvitz & Levy, working pro bono, helped secure a new trial for a prisoner who alleged prison medical officials abruptly terminated his narcotic prescription in deliberate indifference to his serious medical needs.

Daniel Coston, a California state prisoner, suffers from degenerative joint disease. He was prescribed morphine to control his pain, but the defendant prison doctor terminated the prescription after prison guards discovered that Coston had been hoarding pills in his cell.  The doctor acknowledged that abruptly terminating morphine can cause harm to patients (withdrawal), but claimed he did not believe Coston would be harmed because it appeared Coston was not taking the pills.  Coston claimed, however, that he was taking the pills, and the only reason he had some in his cell was because a prison nurse had been leaving them there, in violation of prison policy that required narcotics to be taken in direct observation of medical staff.  A prison guard offered some testimony corroborating Coston’s account.  Coston claimed that he suffered withdrawal when the prescription was terminated, and that his mediation should have been either delivered consistently with prison policy or tapered off, not cut off “cold turkey.”

At trial, the defense requested the jury be given a “Norwood instruction” telling the jury to defer to the judgment of prison officials in carrying out security-based policies.  Coston objected to the Norwood instruction, which is ordinarily not appropriate in cases involving denial of medical care.  The trial court overruled the objection and gave the instruction.  The jury returned a verdict for the defense.  Coston appealed and the Ninth Circuit appointed Horvitz & Levy, the UCLA School of Law Ninth Circuit Appellate Advocacy Prisoners’ Rights Clinic, and McLane, Bednarski & Litt, as pro bono counsel for Coston on appeal.

The Ninth Circuit reversed and remanded for a new trial.  Although the Norwood instruction can sometimes be given in cases alleging denial of proper medical care, the defendants must still provide a link between a bona fide security concern and the challenged medical decision.  And even where there may be a security concern, the jury must be told that deference is not appropriate where the response to the security concern was exaggerated.  Here, even if hoarding pills was a security risk, there was no security-based reason to cut Coston off “cold turkey” rather than employ less harmful means to prevent hoarding, such as complying with the prison’s own medication delivery policies.  Giving the deference instruction was therefore error.  And the error was not harmless, because, as prior cases have observed, the instruction effectively directs a verdict for the defense.